Deciding Between Surrogacy and Adoption

By: Kim Surratt, Esq.

It is common for our clients to have gone through heartbreaking stories of infertility.  They spend years trying infertility treatments.  They pour their hearts and money into treatment after treatment to no success.  Each and every time that a treatment fails, our clients experience a grieving period. They have the procedure and then wait to see if it worked. Over and over again. It is exhausting, physically on woman’s body, and emotionally on the couple.

During each waiting period, “baby fever” would set in and they shop for baby items.  However, the baby fever wears off and it turns to a fear of shopping for baby items.  They become bitter and slowly they decide to discontinue treatments and to stop pouring money into infertility treatments as they are mentally and financially exhausted from the process.

Most of our clients say that they want children, no matter the circumstances. It is an overwhelming power in the core of a person that says “I want to be a parent.”  They believe love for a child is unconditional and it does not matter to them whether the child was birthed by them, birthed by a third party or adopted.  They believe that they would love them all the same.   Yes, they are still drawn to the idea of genetics.  They are drawn to knowing their child will have characteristics similar to them.

These parents are often presented with the idea of surrogacy by their fertility doctor.   However, they are more familiar with the concept of adoption as it is a better understood concept in society.  They have to research both options and try to weigh the pros and cons of each, knowing that they just pray they will be parents one day.  Sometimes our job is to help them weigh the pros and cons to make a decision between adoption and surrogacy.

Obviously, an adopted child is not genetically that of the adoptive parents.  That is an easy differentiation to make between the two options and if the potential parents are set on having a genetically related child, then they have no choice but to look at surrogacy.

If genetics isn’t a selling point for the potential parents, then the next weighing point is the fear of the potential parents that the process will fail and they will not have a child as a result of the adoption process.  The risk tolerance level of the potential parents can easily be traced back to how many failed fertility treatments they have had in the past and their exhaustion level.

In surrogacy, if the surrogate achieves a pregnancy then there is a guarantee under Nevada and California law, if they followed the requirements of the law for a surrogacy, that a court of law will find that the intended parents are the legal parents of the child, not the surrogate.  The risk comes from whether the surrogate can get pregnant or not.  There is a failure rate associated with the process.  It is better explained by the doctors than by the lawyers.  However, the rate of success is controlled by things such as great screening of the surrogate, both physically and mentally, and the doctors use of a high-quality embryo.

In adoption, the risk of failure is high.  If the potential parents are looking at adopting an infant then they can sit on waiting lists for significant periods of time before birth mothers match with them.

Even after a match, the birth parents have a time period within which to revoke consent, usually 48 to 72 hours after birth, unless the they are in a state that follows the Uniform Adoption Act that gives eight days after birth for revocation of consent.   It is a devastating blow to the potential adoptive parents that mimics the effects of failed fertility treatment in which there is a build up and excitement of “baby fever” with no child in the end.  Another route to adoption is foster-to-adopt in which the potential parents become foster parents with the hope of adopting.  In those cases, the same buildup and disappoint that happens in infertility happens here.  A child is placed with the foster parents for a significant amount of time, but reunification of the child with their family is always the goal.  The children may be removed from the foster parents versus being made available for adoption.  The roller coaster feelings that happened during infertility come back into play.

There is nothing easy about this decision.  However, we find that parents who have not endured the exhaustion of infertility treatments tend to fair better in the adoption process.  They have the endurance and stamina to hang in there.  The adoption process can be incredibly rewarding.  However, if you are already exhausted from the roller coaster ride of infertility you may want to take a hard look at surrogacy as an option.

No matter what your journey – seek help!  Don’t do it on your own!  There are many people in the same boat as you with experience to share.  You can learn a lot in a one-hour meeting with an experienced attorney.  Our firm is here for you.  We give parentage advice all the time.  It is our goal to help you make the right decision for you.

Kimberly Surratt served for eight years on the executive council and has been the vice chair and then chair of the State Bar of Nevada Family Law Section. In addition, she is the President-Elect of the Nevada Justice Association and the chair of the domestic lobbying committee. She has lobbied with the Nevada Justice Association since 2004.

Related Articles

Will

What Is a Pour-Over Will?

A pour-over will is a special will that provides that some or all of a person’s assets be transferred to their trust rather than specific beneficiaries or heirs through the probate process. Any assets unaccounted for “pour over” into the person’s trust, helping the estate avoid costly probate. Here is a closer look at what this legal document entails.